Howard v. Beldenville Lumber Co.

• Decision Date: 18 February 1908
• Citation: 114 N.W. 1114,134 Wis. 644
• Parties: HOWARD v. BELDENVILLE LUMBER CO.
• Court: Wisconsin Supreme Court

134 Wis. 644

114 N.W. 1114

HOWARD

v.BELDENVILLE LUMBER CO.

Supreme Court of Wisconsin.

Feb. 18, 1908.

Syllabus by the Judge.

In case of the reversal of a judgment on appeal, a new trial, a second judgment and an appeal therefrom, the former decision is to be regarded as the law of the case and conclusive in disposing of the second appeal as to all questions common to both appeals, raised under the same circumstances as before.

Two distinct issues of fact should not be embodied in one question of a special verdict. If they are so embodied and are expressed in the disjunctive, and the error is not rendered harmless by instructions or something in the record, the defect is fatally prejudicial.

When two propositions of fact are embodied in the disjunctive in a question of a special verdict, and there is no evidence as to one of them, and the jury are expressly, or in effect, instructed to answer only as they shall find respecting the other proposition, the duplicity is harmless.

In case of a first and second trial of an action, there being a bill of exceptions duly settled and made a part of the record containing the evidence given on the former and sufficient ground being shown upon the latter for reproducing the evidence of any witness given on the first, that may be done by reading from such bill, though, if it is not certified to contain all the evidence, the rest thereof may be shown by any competent proof, such as a certified transcript of the court reporter's minutes.

All elements of proximate cause may be submitted to the jury as involved in a single issue of fact.

The objection that a verdict is excessive cannot be raised on appeal in the absence of a bill of exceptions showing that a motion was made for a new trial on that ground. A motion to set aside the verdict as contrary to the evidence and for a new trial does not raise the question of excessiveness of the verdict.

Appeal from Circuit Court, Rusk County; John K. Parish, Judge.

Action by Hubert S. Howard against the Beldenville Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Action to recover compensation for personal injuries claimed to have been caused by negligence on the part of the defendant.

This is a second appeal. The judgment rendered on the first trial was reversed by this court and a new trial awarded, as will be found by reference to 129 Wis. 98, 108 N. W. 48. The issues tried and the general characteristics of the case were substantially the same on the second trial as on the first. Therefore for a statement of details, reference is now made to the former decision.

The claim of the plaintiff was that, through a hole in the main floor of defendant's mill, which it negligently permitted to exist, nearly over the place on the floor below where he, as one of its employés, was required to be in the performance of his duties on the occasion in question, a piece of wood unexpectedly dropped striking him on the right hand, causing him to make such a movement that it was caught between a belt and a rapidly revolving pulley, whereby his arm and shoulder were broken, causing him great pain and permanent disablement. He was 31 years of age when he was injured. The jury found substantially, as follows:

1. There was a hole in the mill floor as alleged in the complaint.

2. Defendant knew of the existence of such hole a sufficient length of time before plaintiff was injured to have remedied the defect by the exercise of ordinary care.

3. The hole had existed a sufficient length of time before the accident that defendant ought, in the exercise of ordinary care, to have known thereof.

4. The existence of the hole in the floor, under the circumstances, was the proximate cause of the plaintiff's injuries.

5. Plaintiff did not know, nor should he have known, of the existence of the hole and that an injury might thereby result to him.

6. It will take $9,900 to compensate plaintiff for his injuries.

Judgment was rendered accordingly, exceptions being duly preserved during the trial and subsequent thereto to raise the questions for decision, discussed in the opinion.

Morton Barrows and L. E. McGill, for appellant.

Samuel A. Anderson and W. H. Stafford, for respondent.

MARSHALL, J. (after stating the facts as above).

Did the court err in refusing to direct a verdict in favor of the defendant, due motion therefor having been made?

That is the first proposition submitted for consideration. In support thereof the following minor propositions are suggested:

1. There was not sufficient evidence to warrant the jury in finding that there was a hole in the mill floor as claimed.

2. If there were such a hole, there was not sufficient evidence to warrant the jury in finding that the defendant ought reasonably to have anticipated that an injury might result therefrom to any of its servants working on the floor below.

3. There was not sufficient evidence to warrant the jury in finding that plaintiff's injury was caused by a piece of wood falling through the hole and striking his hand, causing it to go between the belt and the revolving pulley.

It is a sufficient answer to all such propositions that the evidence, as is confessed by appellant's counsel, was substantially the same on the last trial as on the first, the only difference being that appellant produced more evidence of the same character as before in opposition to that of respondent, and it was held on the appeal from the first judgment that there was sufficient evidence to carry the question of the existence of the hole and actionable negligence on the part of the defendant in respect thereto, to the jury. The former decision, under the circumstances, is the law of the case which must govern on this appeal. Collins v. City of Janesville, 111 Wis. 348, 87 N. W. 241, 1087;Hill v. American Surety Company, 112 Wis. 627, 88 N. W. 642;Rueping v. Chicago & Northwestern Railway Company, 123 Wis. 319, 101 N. W. 710. Perhaps cumulative evidence might be in such amount as to take a case out of that rule, but it is considered that such is not the case here. Five witnesses testified to having heard respondent say he did not know how he was injured. Four testified likewise on the first trial. Two witnesses, who did not agree with each other, testified to respondent having made statements to them severally as to how his injury occurred, which were inconsistent with his story at the trial, while one gave like testimony before. No more need be said on this branch of the case. It was argued at great length by counsel for the appellant, but because of the rule of law to which we have referred, it is useless to go over the ground in this opinion. We are not permitted to consider the matter as an original proposition. The former decision must be regarded as having set the question entirely at rest.

The court permitted to be read in evidence the testimony given by Herman T. Hanson on the former trial, as preserved in the bill of exceptions, a proper case having been made for reproducing such witness's evidence. Error is assigned upon the ground that the reporter's certified transcript of the evidence formerly given was the best evidence thereof. It is the opinion of the court that the question thus raised is ruled in respondent'sfavor by Wilson v. Noonan, 35 Wis. 321, and Hill v. American Surety Co., supra, regardless of what has been decided in any other jurisdiction.

In the first case cited it was held that a bill of exceptions purporting to contain all of the evidence given at the trial of a cause is competent and the best proof of what the witness then testified to, and may be read as such upon there being a proper occasion at a subsequent trial for its reproduction.

In the second case cited, it was claimed, as here, that the best evidence of what a witness testified to on one trial, in case of its being proper to show the same upon a subsequent trial, is the transcript made and certified by the official reporter, especially since such certified transcript is made evidence by section 4141, St. 1898. The court, however, adhered to the former ruling notwithstanding the passage of the statute in the meantime, saying that the reporter's certified transcript is of itself of “no higher grade of evidence than the testimony of the reporter, or any other witness who was present upon the former trial, as to what transpired.”

True, the record here does not affirmatively show that the bill read from contained all of Hanson's former evidence, though since it was concerning a vital point in the case and no objection was made on that precise ground, presumably it did. But in any event it was competent to reproduce the evidence as contained in the bill, subject to the right of appellant to show by competent proof that the witness gave other evidence, and what it was.

We do not overlook the fact that the particular occasion for reading from the bill of exceptions was different from the occasion in either of the other cases cited. That does not seem to be important. Such cases lay down as a general principle, that when upon one trial of a case it is competent to produce the evidence of a witness who testified upon a previous trial, it may be done by reading from a bill of exceptions containing such evidence.

Our attention is called to a number of cases supposed by counsel for the appellant to be somewhat in conflict with the rule above stated. We shall not refer to them in detail. In the main they are not in conflict with the rule of this court.

Counsel refers us to Wigmore on Evidence at page 2067, in volume 3. The author's general conclusion, which is supported by a large number of cases cited in note 2 at page 2068, is in harmony with the rule of this court. He said:

“From the point of view of practical safety, the question is a difficult one to settle by a general rule, and must depend much on the local professional methods. But it seems clear, so far as principle is...